Questions and answers

Why was this scheme created?

The Homosexual Law Reform Act 1986 decriminalised homosexual conduct between consenting men. There is no general rule that a person’s conduct is deserving of a pardon because the conduct concerned is no longer an offence.

Allowing historical convictions for homosexual offences to appear on a person’s criminal history can continue to stigmatise those affected. Additionally, people with such convictions may be required to disclose their conviction for employment matters.

The scheme provides an opportunity for people to be treated as if they had not been convicted, and to remove the stigma and prejudice that can arise from convictions for homosexual offences.

What does ‘expungement’ mean?

An eligible person’s records will be ‘expunged’ or wiped. This means their criminal record would be amended to ensure the conviction does not appear on a criminal history check for any purpose in New Zealand and they will be entitled to declare they have no such conviction.

This is consistent with the approach taken in most comparable overseas jurisdictions.

Who is eligible to apply under the scheme?

People will be eligible to apply if they were convicted of specific offences under the Crimes Act 1961 or the Crimes Act 1908 relating to consensual sexual activity between males 16 years and over before 8 August 1986. The offences are:

section 153 (unnatural offence) Crimes Act 1908 but only for offences committed with any other male human being

section 154 (attempt to commit unnatural offence) Crimes Act 1908 but only for offences attempted to be committed with or against any other male human being

The threshold for granting an application is satisfaction on the balance of probabilities that the conduct in question no longer constitutes a criminal offence – this generally means the sexual activity must have been consensual and involved adults 16 years or over. Only convictions for these offences can be wiped. The Act doesn’t permit any other types of convictions to be expunged.

Why is the scheme limited to those offences only? What about people who were convicted of other offences because of their homosexuality?

It is possible that homosexual activity was prosecuted under other generic offences, rather than the more specific offences listed above. For example, the offence of disorderly behaviour can cover a range of conduct.

Extending eligibility to people convicted of these offences would considerably increase the complexity of the scheme. Other offences generally include elements that constitute criminal behaviour beyond the fact that it involved homosexual activity. The Government’s preference is to have a scheme that is clear to affected individuals and can be administered in a relatively straightforward way.

Does expungement happen automatically for all eligible people?

No. Expungement does not happen automatically. An application needs to be made by or on behalf of a convicted person, and granted by the Secretary for Justice.

Who can fill out the application form?

The convicted person can make an application themselves, or through someone (such as a lawyer) they have authorised to act on their behalf.

If the convicted person has already died, a representative of the person may be able to make an application for them. The following people have the right to act as a representative:

the executor, administrator, or trustee of, acting on behalf of, the estate of the convicted person:

a spouse, civil union partner, or de facto partner, of the convicted person;

a parent, sibling, or child, of the convicted person.

Other people can ask the Secretary for Justice for permission to be treated as a representative of a convicted person who has died. The decision to grant permission is based on whether to do so would be in the interests of the convicted person.

How much does it cost?

Nothing. There is no application fee.

Is there a time limit for applying?

No. There is no time limit for making an application.

Do I need a lawyer?

No. You are welcome to use a lawyer, or another person, to help prepare or submit your application, or to deal with the Ministry on your behalf. But you do not have to use a lawyer.

Can I apply to get the convictions of two or more people expunged?

No. Each convicted person who wants an expungement must make a separate application. If two people were convicted for offences arising out of the same facts, they must each apply if they both want their convictions expunged.

If I have two or more offences that I want expunged, can I apply in a single application?

Yes. An application can be for more than one offence, if they relate to the same individual.

Who will get to see my application?

Applications will need to be assessed by a small number of officials in the Ministry of Justice. Only officials who need to see an application will see it. It may be necessary in some cases to ask an expert advisor to assist with the assessment.

How will the Ministry gather further information on my application?

The Ministry may consider information obtained from other official or public sources. The Ministry may need to ask an applicant for further submissions or information on particular points. Sometimes it might be necessary to seek information from another individual and the Ministry will consult with you before approaching another individual for information.

Can other people find out about my application?

The application process is private, and the Ministry will treat applications in strict confidence. No part of the process will take place in public.

The names of applicants, and the outcomes of applications, will not be published.

Information held by the Ministry is subject to the Official Information Act 1982 and the Privacy Act 1993. The Ministry appreciates that applications contain personal information about highly sensitive and private matters. Unless required otherwise by law, the Ministry does not expect to make public details about an application.

Sometimes it may be necessary to seek information from another private individual as part of assessing an application. The Ministry would consult with the applicant before approaching another private individual for information.

Anonymised statistical information may be collated and published, for the purpose on reporting on the overall effectiveness of the expungement scheme. But that will be done in a way that does not enable applicants to be identified.

Do I have to prove my case?

The Secretary for Justice needs to decide, on the balance of probabilities, whether the conduct constituting the offence, if engaged in when the application was made, would not constitute an offence under the laws of New Zealand. There is no onus of proof. But the more information an applicant is able to provide, the better. In particular, it is likely to be important for the Secretary to be satisfied that any relevant sexual activity was between adults and was consensual. If there is a lack of clear information about a case, the Secretary may have to decline the application.

Will I have to give evidence in person?

In most cases, no. This is not like a court case. It would not normally be necessary for an applicant to give evidence in person. Applications are usually determined by assessing written material without holding a hearing, interview, or meeting.

The Secretary has the ability to hold an oral hearing if there are exceptional circumstances and it is appropriate to do so in the interests of justice, but the law contains a strong presumption that most expungement applications will be determined just by assessing written material.

How long will it take to decide an application?

It is not possible to predict how long it may take to decide an application, but it is likely to take some months. Each application needs to be individually and carefully assessed, and may need to involve seeking and considering additional information. Sufficient information may sometimes be difficult to find. Some applications may be more complex or difficult to determine than others. You will be able to contact relevant officials to check on progress with your application.

Are the relevant criminal records destroyed after expungement?

No. Records are not destroyed. Archival records and public information remain in existence, as a record of social and historical facts. What happens is that the person’s criminal records are amended, so that the expunged conviction will no longer show up on the person’s criminal history.

How is an expungement enforced?

The legislation contains offences to ensure that an expungement is respected. It is an offence for an official to disclose an expunged conviction without authority. It is also an offence for a person to ask or require someone else to disregard the effect of expungement when disclosing their criminal history.

Will I still have to disclose an expunged conviction when I travel overseas?

Possibly. New Zealand law cannot bind other countries. Whether or not you need to disclose an expunged conviction to authorities in another country will depend on that country’s law and the wording of the particular question or requirement.

Will I get a personal apology as part of the expungement decision?

No. The expungement scheme is about determining whether certain convictions should be expunged.However, on 6 July 2017, the House of Representatives passed a resolution to apologise to those homosexual New Zealanders who were convicted for consensual adult activity, and recognise the tremendous hurt and suffering those men and their families have gone through, and the continued effects the convictions have had on them. You can read that apology, and the speeches made by MPs in that debate, here:

Can I get compensation?

No. The expungement scheme does not provide for financial compensation to be paid to a person who has a conviction expunged.

How does this scheme compare with the Clean Slate Act?

There are two main differences:

to be eligible to conceal a conviction under the Clean Slate Act, the person must, among other factors, have been conviction free for seven years and have never been imprisoned, whereas an expungement will be available regardless of subsequent offending and the sentence imposed

the scheme will not have the limitations that are included in the Clean Slate Act – if a conviction is expunged it cannot be disclosed for any purpose in NZ, whereas under the Clean Slate Act a conviction may still be disclosed in certain situations (e.g. when a person applies for a job working with children).

How does this scheme compare with what other jurisdictions have done?

The scheme is modelled on a number of schemes or proposed schemes in Australian states and England and Wales. There are some distinctions based on our own particular legal context.

Any other questions?

If you have other questions about the expungement scheme or the application process, you can write to the Ministry at this email address wiped@justice.govt.nz.